When Can a Daughter-in-Law Legally Contest a Will in NSW?

Although claims by children or spouses dominate family provision claims in NSW, the current economic environment and increase in multigenerational living may lead to more claims from more distant relatives who, at some stage, shared a residence with the deceased. 

One example of where a daughter-in-law might contest a will in NSW is where they were living with the deceased and caring for the deceased, leading up to and at the date of the deceased’s death. In some circumstances, this could have created a moral obligation on the deceased to leave the daughter-in-law something in their will. 

Simply being married to the deceased’s son is not enough. 

For the family provision claim by a daughter-in-law to succeed in NSW, they must satisfy the following three criteria:

1. They are an eligible person under section 57 of the Succession Act 2006 (NSW) by virtue of the following:
   1. They are a former member of the deceased’s household and were financially dependent on the deceased at some point; or
   2. They were living with the deceased in a close personal relationship at the date of the deceased’s death; and
2. They have received inadequate provision under a will (or on intestacy) for their proper maintenance, education and advancement in life; and
3. There are factors warranting the making of the family provision application. 

Even if the above criteria are satisfied, the Supreme Court of NSW may still refuse to make an order in favour of the daughter-in-law who contested the will.

What Evidence is Needed to Support a Will Contesting Claim?

Examples of useful Evidence

The evidence that a daughter-in-law may choose to rely on includes: 

• Written evidence (an affidavit) and oral testimony – where the daughter-in-law gives evidence detailing the period(s) during which they lived with the deceased, the living arrangements, the nature of the relationship, the nature and extent of any domestic support or personal care provided, and the nature and extent of any dependency.
• Documentary evidence – to establish the period of shared residence (such as utility bills) and documentary evidence to establish the nature and extent of the dependency (in the form of bank statements and receipts). 
• Evidence from family members, friends and neighbours – to establish the period of shared residence or the extent of any dependency.

The evidence required to contest a will in NSW usually requires clear and documented proof. A family provision claim may fail unless it is supported by relevant and admissible evidence. 

Therefore, a daughter-in-law who intends to contest a will in NSW in the future should gather documentary evidence of any dependency and the nature of the relationship. An experienced wills and estate lawyer will be able to identify evidence for inheritance disputes in NSW in the particular circumstances.

Challenges and Likely Outcomes for Daughters-in-Law Contesting Wills in NSW

Contesting a will as a daughter-in-law can be challenging. 

One challenge faced by daughters-in-law who bring family provision claims surrounds establishing eligibility if they had lived with the deceased prior to their death, but were no longer living with the deceased at the date of their death. This would prevent them from claiming they were living with the deceased in a close personal relationship at the date of their death. They would then need to establish the historic period of shared residence and historic financial dependency on the deceased. 

Another challenge faced by a daughter-in-law is that there may be competing claims from other people, such as a spouse, de facto partner, or biological family members, such as children, who would usually be given priority. 

If a daughter-in-law is unsuccessful in establishing one or more of the three criteria and their claim is refused, the court may order them to pay the estate’s costs in defending the claim. 

The most common way to avoid the risks of cost consequences arising from formal court proceedings is to attempt negotiations with the executor and any relevant beneficiaries before commencing formal court proceedings. In some cases, the daughter-in-law may be able to secure a favourable outcome through negotiations whereby they receive a share of the estate to compensate them for their past care and support of the deceased. 

Negotiations can continue even after court proceedings have been commenced. Indeed, in NSW, the parties are required to attend mandatory mediation. Mediation is where the parties meet with an independent mediator and attempt to resolve the claim. Mediation can be court-annexed, where it is conducted by the Registrar of the Supreme Court, or private mediation. If the parties can reach an agreement during mediation, the agreement can be formalised, bringing an end to the dispute. If an agreement cannot be reached, the family provision claim may proceed to a final hearing, unless withdrawn.

Although Supreme Court of NSW will disputes are common, claims by daughters-in-law are rare and usually only arise where the daughter-in-law was living with and providing personal care and support to the deceased leading up to and at the date of their death. 

The prospects of a claim by a daughter-in-law will depend on the facts and circumstances of the particular case, and even if successful, the court may decide to order no or only limited provision. 

Strict time limits apply to family provision claims in each State of Australia. In NSW, a Supreme Court of NSW will contest must be commenced within 12 months of death. However, executors should be given notice of a claim within 6 months of the deceased’s death to reduce the risk of the estate being distributed before the 12-month deadline. 

Any person considering a family provision claim, an inheritance dispute in NSW, or challenging a will in NSW, should seek immediate legal advice regarding what time limits apply in the relevant jurisdiction.

Need Help Contesting a Will? Contact Empower Wills and Estate Lawyers

Empower Wills and Estate Lawyers are leading family provision claim lawyers in Sydney and have extensive experience in contesting unfair wills in NSW, deceased estate disputes in NSW, contesting a will in NSW, inheritance disputes in NSW, will contests, challenging a will in NSW, and defending family provision claims. 

Strict deadlines apply to claims in each State of Australia. 

To speak to a will dispute lawyer in Sydney and discuss your eligibility to contest a Will in NSW, contact Empower Wills and Estate Lawyers in Sydney, NSW now on 1300 414 844 to speak to one of our experts.

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Disclaimer: the information in this article relates to NSW law as at the date it was written and is general information only. It does not constitute legal advice and should not be relied upon as legal advice. It may contain information or links to sources which are no longer current. If you have a question or legal issue, we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts, circumstances, needs and objectives.